As deadline for balanced budget passes, Cowichan school board readies for fight

Jun 30 2012

The B.C. government could have another court battle on its hands if Education Minister George Abbott fires the Cowichan school board for failing to balance its budget.

The board has obtained a legal opinion showing that trustees would have grounds to challenge their removal.

"It is our hope this document will supply us with the means to seek reinstatement," board chairwoman Eden Haythornthwaite said in a statement. "Individual trustees will now proceed to follow up this opinion with action."

The board has until midnight tonight to submit a balanced budget to the provincial government, but has no plans to do so.

The board voted 5-4 last month to approve a budget more than $3.7 million in the red, because a majority of trustees felt they could no longer continue to cut the district's budget and still provide a quality education.

The deficit budget would restore services that have been eliminated in recent years, including teacher-librarian time, intensive behaviour teachers and custodial help.

A minority of trustees, as well as district administrators and the provincial government, countered that the budget could be balanced without having to make deep cuts. They warned that approving a deficit would force the government to fire the board and appoint an official trustee, thereby robbing Cowichan voters of their elected voice.

Abbott has made clear that he will do just that if Cowichan trustees stick to their guns.

"The school district has a responsibility to deliver a balanced budget," he stated previously.

"The School Act is very clear about what will occur if they're not providing a balanced budget."

But Vancouver lawyer Joanna Gislason disputes that the School Act is clear on the issue.

In an 11-page legal opinion for the board, Gislason says the government has the right under the School Act to remove trustees if they simply fail to submit a balanced budget in the absence of other competing factors.

But, she says, the trustees in this case have concluded that, by balancing the budget, they would be breaching their other duties under the act to improve student achievement.

"It is not possible to predict what a court would find in this case," Gislason writes.

She notes that there is nothing in the School Act that explains how to resolve a conflict where, in upholding one duty, trustees would breach another.

A judge would have to consider the law's language, as well as the Charter of Rights and Freedoms and human rights principles.

Further, she says the government's power to remove trustees "has been consistently narrowed" since Vancouver trustees lost a court challenge of their firing 27 years ago. The School Act now requires government to justify its exercise of power.

"Faced with conflicting obligations, the trustees in this case chose to privilege their obligation to improve student achievement over their obligation to provide a balanced budget," Gislason writes.

"There is no legal certainty that this decision would be found by a court to justify their removal."

Haythornthwaite said the government has shot down repeated attempts to set up meetings and resolve the dispute. She expects a decision on trustees' fate will come after the holiday long weekend.

"That's just a guess," she said. "I've never been fired by the government before."

In the meantime, she said trustees continue to receive widespread support from the parents, teachers and trustees across the province.

"It's very gratifying," she said. "Even it doesn't change things, it certainly gives us a lot of strength."